Wisc. driver who crossed fog line was stopped without enough reason, judge rules

Drunken driving overturned

By DAVID DOEGE and JACQUELINE SEIBELMilwaukee Journal-Sentinel

WAUKESHA, Wisc. — A state Court of Appeals judge on Wednesday overturned the drunken-driving conviction of a Hartland man, ruling that a police officer did not have "reasonable suspicion" to pull his car over after it drifted over the fog line twice.

In reversing the conviction of Brian J. Haanstad, Appellate Judge Richard S. Brown concluded that crossing the fog line - the stripe marking the side of the road - by itself "is simply not enough" erratic driving to form a basis for the stop. Typically, Brown said in his ruling, officers make the decision to stop after seeing a variety of indicators that a motorist is having difficulty controlling a vehicle.

"But in this case, we simply cannot tell from the scant evidence before us how Haanstad was driving," Brown wrote.

"So, we cannot know whether the reasonable police officer would form a commonsense impression that the driver of the car being observed was having control problems.

"To the contrary, common sense would suggest that two instances of tires going over the fog line, no matter what time of day or night, does not - without more information - signal that the driver was having a problem controlling the vehicle."

Reached for comment Wednesday, Hartland Police Chief Robert Rosch said the ruling seems to ignore that state law prohibits lane deviation and leaves him wondering what the court expects police to do.

"Normal people who aren't under the influence or having a medical problem are not deviating from the traffic lane," Rosch said.

Defense attorney Daniel Fay, who represented Haanstad in trial court and the appellate court, said Wednesday that a factor cited by Waukesha County Circuit Judge Kathryn Foster in upholding the stop - the 1 a.m. stop time - did not make the decision to pull the driver over any more justifiable.

"We get to drive at one o'clock in the morning with the same constitutional rights," Fay said. "It was just one of those cases where the police didn't see very much."

The ruling means that Haanstad won't have to serve the 10-day jail sentence he received, a term stayed pending appeal. It also means that Haanstad is in line for a refund of the $894 fine and court costs he paid in his second offense conviction.

Haanstad, 30, was stopped on westbound Highway 16 in Hartland, according to court records, after both tires on the passenger side of his 1993 Chevrolet Corsica crossed the fog line twice in the space of one-half mile just after he merged onto the highway from an on-ramp.

After Foster rejected Fay's contention that the stop was unjustified, Haanstad pleaded guilty. His blood-alcohol concentration, according to Fay, was slightly over the 0.08 level considered legal evidence of intoxication in Wisconsin.

"If we had been told, for example, that Haanstad strayed over the fog line for several seconds each time before pulling his vehicle back into the lane, this would be sufficient for us to conclude that a reasonable officer would see this as uncommon behavior," Brown wrote in the decision released Wednesday. "Or, if we had been told that the driver jerked or swerved the vehicle back into the lane, then the evidence would be sufficient for us to assess the commonsense conclusion of the reasonable police officer."

From a driver's perspective, according to Brown, crossing the fog line while merging isn't particularly uncommon.

"There are probably a multitude of drivers every day who do not negotiate an entrance to a freeway without going over the fog line," Brown wrote. "Yet their driving is not suspect."